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Don’t count FMLA against attendance record

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in Firing,FMLA Guidelines,Human Resources

Employers that count FMLA-covered absences against employees are interfering with their FMLA rights. Before you make a final termination decision based on poor attendance, make absolutely sure that you have excluded all possible FMLA leave.

Recent case: Edward worked as a medical-assistant instructor. He was frequently absent from work, running home to unlock the door for his wife when she forgot the key, helping her deal with a broken-down car and even rushing home one day to confront her alleged lover.

He also took time off to care for an ailing parent. That time was excluded from his absenteeism record.

Edward was warned about his poor attendance. He called in sick many times, but seldom gave a specific reason. Those absences were counted against him when he was eventually terminated.

However, several absences were related to a specific set of episodes in which he explained he was going to the doctor due to extreme vomiting, diarrhea and other symptoms. He explained that he was going to the ER for blood work and a colonoscopy. The testing revealed he had acute gastritis, which can be a serious health condition under the FMLA.

Edward sued, alleging interference with his right to FMLA leave.

The court said he had provided enough information to give his employer notice he needed FMLA leave when he told them about his trip to the ER. Because an email between managers supporting the termination decision mentioned that absence as a factor, he had enough evidence to warrant a trial on whether he was fired for taking protected FMLA leave. (Hoopingarner v. Corinthian Colleges, No. 8:11-CV-397, MD FL, 2012)

Final note: It’s your duty to follow up when an employee reports an absence with enough detail to suggest he needs FMLA leave.

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